It clearly appears that the proceedings before the Spanish tribunal, had not ripened into a final judgment. It is true, at the inception of the suit, a writ of seizure was awarded against the property of the husband and afterwards another against that of the wife, but these writs of seizure, like writs of attachment, are original writs to bring in parties into court, as the nature of the case requires.
The renunciation of the wife, is not, as the plaintiff contends, a matter of form, introduced by practitioners. The civil law considers women generally to certain purposes as in a kind of perpetual nonage and the law 2, tit. 12, part. 5, declares null all contracts of suretiship, entered by a woman, for any other person than her husband. It is true that the law 3, tit. 12, part. 5, allows a woman to renounce the former, but it requires she should be made acquainted with its provisions.
*295Febrero, informs us, that the notary, who receives the contract, is bound to make the woman acquainted with the disposition of the law in her favor, and the consequences of her renunciation, and he ought to certify that this has been done, 2 Libreria de los Escribanos, cap. 4, sect 4, n. 115, unless he takes the trouble to recite at full length, the law itself. If he neglect to do so and does not apprise the woman, he incurs corporal punishment, and the act ought to be declared null. Loco citato.
The act is also to be annulled, if it appear by the interrogatories that the notary was not himself master of the dispositions which it was his duty to make known, id.
In the present case, from the generality of the laws cited, out of the Spanish and Roman codes, we are perhaps justified in presuming the ignorance of the notary. His examination manifests his inability to refer to the particular law of the Toro, all of which, 83 in number, are renounced in the lump. The case is rendered much stronger from the deposition of a person, present at the extecution of the act, who contradicts the notary in the belief which he expresses of the ability of the wife to have understood these laws, had they been read to her, from her very imperfect knowledge of the Spanish language.
If this renunciation be stricti juris, when the wife becomes surety for a stranger, as she then has the aid of her husband, it is much more to *296be required, when inops consilii, he makes her take an engagement for his benefit : since the civil law, in order to protect the wife, agrainst the consequences of conjugal affection, will not allow her dotal property to be aliened, during the converture, even with her consent. Law 7 tit. II. Part. 4. For it would be to expose her to remain without property, indotata, to allow her to become his surety, since on defect of his, her goods would have to be taken.
On this principle, the law 61 del Toro, which is the law 9, tit. 3. lib. 5, de la Recopilacion de Castilla, declares void, any contract in which the wife binds herself in solidum with her husband, or becomes his surety for any debt of his, unless contracted for her particular benefit, and for some article which he was not bound to provide for her. This last law, has no clause allowing a renunciation to its dispositions, but, it appears, that the courts of Spain have in practice, construed it as admitting it.
But, the uniform opinion of every Spanish writer is, that, when the wife becomes surety for the husband, the instrument is to be clothed with all the formalities required, in cases in which she binds herself for another person.
Colom, formally says, that in all cases of suretyship, the laws in favor of women, must be specially renounced, because a general renunciation to all laxos in favor of women, would *297not be sufficient to render the instrument valid. 2 Libreria de los Escribanos, 154. n. 4.
Febrero, speaking of general renunciations, says, they are absurd, and tend only to introduce error and confusion.
This point was also determined, in a judgment rendered in this city, when under the dominion of Spain, July 13th 1803, in the case of Fletcher vs. Piernas.
As we are of opinion, that the renunciation, ought to have been special, it is unnecessary to inquire, whether the wife ought not to have been authorised.
Judgment for the Defendant.